The Court has given the president full control of one of the three branches of constitutional government — and created a separate fourth branch in the Fed.
The Court has given the president full control of one of the three branches of constitutional government — and created a separate fourth branch in the Fed.
T he usual pattern, when the Supreme Court does something historic, is that the historic thing is the headline (celebrated by its proponents, denounced by its critics), while legal analysts sift through the open questions about how far the new ruling goes. Today’s pair of decisions on the president’s power to remove the heads of “independent” agencies reverses that pattern. The decisions showcase Chief Justice John Roberts, who wrote the majority opinion in both cases, and illustrate what most drives the chief justice’s critics to distraction. This was the full Roberts experience.
The big-deal, straight-into-the-textbooks case is Trump v. Slaughter. Today’s decision allows Donald Trump to remove a member of the Federal Trade Commission without cause and without judicial interference, and its principle extends to most of the “independent” agencies created by Congress. After 91 years of controversy, the Court overruled Humphrey’s Executor v. United States (1935) and ruled that presidents can remove executive branch officials even if Congress tries to statutorily restrict that power, given the president’s sole personal power and duty to carry out the tasks given to the executive branch under Article II. That is the case even though it is Congress that creates the offices and the Senate that confirms appointments. Once they are sent to work in the executive branch, they work for the president, and the president cannot do his job if he can’t fire them.
This was the “unitary executive” argument at the heart of Justice Antonin Scalia’s lone dissent in Morrison v. Olson (1988), his first landmark opinion, which captured the legal imagination of a whole generation of young lawyers and law students and now commands a majority of the Court. I read Morrison in college; the three youngest members of that majority would also have read it before graduating law school. But Scalia did not write on a blank slate, drawing heavily from the work of Chief Justice William Howard Taft in Myers v. United States (1926), whose centennial this year show that it has surmounted the shabby treatment given to Taft’s opinion less than a decade after it was issued. Roberts gives Taft’s “scholarly opinion” his due. For good measure, Roberts gives the first citation in Trump v. Cook to recently deceased historian Gordon Wood.
Slaughter looks like a historic opinion. With all six conservatives joining the majority opinion, it runs 34 pages, plus a 16-page concurrence by Justice Neil Gorsuch and a 49-page dissent for the three liberals by Justice Sonia Sotomayor. Roberts spends nearly a third of his opinion discussing the case for overruling Humphrey’s Executor. And yet, it feels anticlimactic. We have known it was coming out this way since emergency docket decisions last summer on removal of members of the Consumer Product Safety Commission, the National Labor Relations Board, and the Merit Systems Protection Board, in which the Court all but declared Humphrey’s Executor a dead letter. Today does not mark its death so much as its funeral.
Trump Gets Cooked
The real action came in the undercard, Trump v. Cook, which involved the power to remove governors of the Federal Reserve. After the Court signaled as well last summer that it might not extend the president’s absolute removal power to the Fed (citing the distinct constitutional history of central banking, albeit without much of a persuasive argument attached to that assertion), Trump’s lawyers made a strategic choice: to try to remove Fed Governor Lisa Cook for cause, in compliance with the Fed’s removal statute, rather than challenge the statute’s constitutionality.
The administration argued that Cook had committed mortgage fraud, or at least misrepresentation, in loan applications before she took the job. Everybody could see that this was a pretext to get rid of a governor standing in the way of Trump’s desire for lower interest rates, and that rightly alarmed defenders of the Fed’s independence. On the other hand, there was very little precedent directly to the point of what exactly the “for cause” removal standard means, and the conservatives on the Court are inclined to let Trump do things for his own reasons if he has otherwise complied with what the law allows him to do. Either he’s exercising his powers of office or not; it’s the progressives who want the president’s powers to depend upon whether they approve of his motives.
Cook won, and then some. The administration’s decision not to swing for the fences, which most Supreme Court watchers considered prudent strategy, turns out to have been a bad decision. Roberts hit his own long ball, taking the opportunity to exempt the Fed from the Slaughter rule even though the issue hadn’t been properly contested by the parties before the Court. The result makes the Slaughter majority look like hypocrites in joining a broadly reasoned defense of executive power, even though four of the six members of that majority dissented in Cook. Two of the three Slaughter dissenters (Justices Sotomayor and Elena Kagan) joined the Cook majority without further comment. Justice Brett Kavanaugh, by contrast, wrote to defend the decision to reach out and settle the Fed’s constitutional status on the grounds that the monetary system demands certainty.
Thus, the Fed now remains alone outside of the rest of the federal government, in which everyone else must answer to either the president, Congress, or the Court. The other surprise, given how poorly the argument went for the administration, is that the case was close – but the abandonment by Roberts of his usual sense of judicial minimalism may have driven that reaction. This time, Roberts mustered only a 5–4 majority, joined by Kavanaugh and the three liberals. Justices Clarence Thomas, Samuel Alito, and Amy Coney Barrett each dissented separately, with Gorsuch joining Alito’s dissent. Only Thomas argued explicitly against exempting the Fed from the Slaughter rule, although Barrett criticized its reasoning for failing to adequately analyze the exception with the same scholarly thoroughness as the rule.
Independent Agencies to the Slaughter
Roberts’s Slaughter opinion, which deserves a more detailed review another day, is grounded largely in Founding-era history (there are many quotations to Washington, Hamilton, Madison, Adams, and Jefferson), the function of the executive, and the unworkability and erosion by precedent of Humphrey’s Executor. As he concluded:
Our Constitution creates three branches, but only one President. That President is not all powerful — not by any means. But he is not impotent either. He and he alone is vested with “the executive Power” of the United States. . . . To discharge the duties of his trust, the President must have the assistance of officers he can trust. . . . Although it is up to the Senate to decide whether to confirm those with whom the President would prefer to work, neither Congress nor the courts may saddle him with those with whom he cannot work. Subordinates who exercise the President’s power are subject to removal by him. Then, and only then, can they remain accountable to the President, and the President to the people.
Roberts did not skimp on disdain for the dissent’s arguments: “With no support in the founding era as a whole, the dissent opts to skip ahead a century or two.” The dissent “defends a version of Humphrey’s [Executor] that does not exist,” and wraps itself in stare decisis yet “sweeps the chess pieces off the board, rejecting not only [prior Roberts opinions in] Free Enterprise Fund and Seila Law but Myers and the Decision of 1789 as well.”
Gorsuch, for his part, quoted FDR, adding that “the Court does much to vindicate what Franklin D. Roosevelt and James Madison both understood: Under our Constitution, executive power does not belong to a ‘headless ‘fourth branch.’” But he warned that treating these agencies as purely executive in their management left open real questions about the powers they can exercise:
Today, independent agencies do not just exercise executive law-enforcement powers. Congress has also delegated to them vast legislative and judicial powers, effectively allowing these agencies to make laws and decide disputes under them. And, after today’s decision, the President can effectively exercise all those powers too. . . . What, if anything, will this Court do about it?
Roberts explicitly declined to consider, for example, how Slaughter affects Tax Court judges and other non-executive officials housed inside these agencies. In Sotomayor’s view, the nation should have stayed on a course where vast areas of public policymaking were insulated from accountability to the governed:
For most of this Nation’s history, Congress and the President together have decided that some Government functions should operate at a distance from partisan politics. Those include the management of nuclear energy; the security of the monetary supply; and the safety of American workplaces, consumer products, and chemical hazards. In these and many other areas, the wisdom of the centuries has taught that some decisions should depend not only on who is in office — much less on who is disfavored or owed a favor by those in office — but also on judgment, expertise, and the public good.
Her opinion uses the words “expert,” “experts,” or “expertise” eight times. And experts have a place in the government as advisers and aides to the elected officials. Article III even gives one and only one kind of expert — judges — life tenure in order to ensure that they serve a particular function. But “judgment” and “the public good” are precisely the things that voters are supposed to provide by choosing the leaders whose judgment and vision of the public good reflects their own.
I’ll have more shortly on Cook.